The Value and Necessity to Prosecute Russia’s Crime of Aggression


In the wake of invading Ukraine in the 24- day of Feb. 2022 Russia has rightly been subject to international scrutiny for its violation of the sovereign rights of Ukraine and the alleged commission of various international crimes. There is a general agreement in the international community that action should be taken to stop Russian hostility and to show an unwavering and consistent commitment to Ukrainian sovereignty. There is a lot of discussion about how world community members, specifically in the law realm, will impose consequences for such actions.

As of the date at the time of writing, several actions have already been taken to achieve this aim. The International Court of Justice (ICJ) Declared the Russian invasion of Ukraine illegal and ordered the country to “immediately suspend the military operations” it had begun. As you would expect, the court decided that The Kremlin has firmly rejected the Kremlin. The European Court of Human Rights (ECtHR) has expressed urgent interim measures that include the Russian government’s requirement to stop committing attacks on civilians, and medical facilities, civilian objects, and other facilities are required to guard against the violation under the European Convention on Human Rights (ECHR). In the case of prosecuting suspects and pursuing criminal charges, it is the International Criminal Court, led by Karim Khan, QC; the report also stated that an investigation would be launched into human rights violations committed within Ukraine by Russia by preliminary studies to be conducted in 2020. This was done in the wake of the receipt of 39 state referrals. The ICC of the current situation to the ICC of the crisis in Ukraine allowed the OTP to begin the investigation without being scrutinized by the Pre-Trial Chamber Pre-Trial Chamber as the norm. It is important to remember that these investigations have nothing related to an act of aggression (which this report is principally focused on); however, they are concerned with genocide, crimes against humanity, or war crimes committed in Ukrainian Territory. However, the ICC does not have authority over crimes of aggression since it is a matter between Russia and Ukraine. Are not State Parties to the Rome Statute as is required to have ICC jurisdiction( Article 15bis(5) in that of the Rome Statute)?

This article won’t address the actual difficulties involved in the establishment of a tribunal or giving jurisdiction to local courts to prosecute crimes of aggression (this has been well covered in this article); however, it will try to add benefit in the pursuit of aggressive crimes, independent of the body which decides the prosecution. It is important to note that the most likely alternatives are prosecution by domestic courts as described in this article or establishing an international ad-hoc tribunal with support from the General Assembly similar to that given Extraordinary Chambers at the Courts of Cambodia. In this context, in this article, we will point out the necessity to go beyond the existing legal remedies the international community has implemented and prosecute, precisely, the offense of aggression.

What is the crime of aggression?

In the Article 8bis(1) of the Rome Statute, the crime of aggression is defined by the term “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”(emphasis added). In the case at hand it is acknowledged that there is no doubt that the attack (invasion of Ukraine) is a “manifest” violation of Article 2(4) of the UN charter specifically prohibiting any “use of force” against the territorial integrity of a nation (see the pieces of Schmitt as well as Janik). As was recently stated by the ICJ about the Armed activities in the Territory of the Congo case, it is in violation of a principle that is an element of “the most fundamental” in international law.

Why is it necessary to investigate it?

Although this article will concentrate on the practicality of prosecuting the offense of aggression in relation to the Russian invasion of Ukraine, the philosophical justifications for the prosecution of aggressive acts are essential in determining the need for this type of prosecution. A traditional conception of the normative reason for criminalizing aggression is based on the Walzerian account. This suggests states can enjoy dual territorial integrity and political sovereignty rights. Aggression can be a violation of these rights. Dannebaum It is recommended that, while it could be the case that violation of freedom is a significant issue, the fundamental error aggression tries to prevent is “unjustified killing and infliction of human suffering.” In addition, it is one of the crimes that can make provision for the unjust murder of civilians and combatants. Without this clause, there could be a massive “gap” in criminal law protection during international conflict. This is why the complete security that prosecution for aggression affords victims in Ukraine shows why the criticisms claim this is unnecessary. The current attempts to prosecute crimes of other kinds are not up to scratch.

Concerning the legal basis for prosecuting the crime of aggression, there are two primary motives for this in this particular case: the broader scope the crime of violence has to bring wrongdoers to justice and the relatively easy of obtaining the conviction.

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